Michael Zothankhuma, J.

1. Heard Mr. D. Das, learned senior counsel assisted by Mr. S. Khound, learned counsel for the petitioner and Mr. B. Goswami, Standing Counsel, Water Resources Department, Govt. of Assam for the official respondents. Also heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dubey, learned counsel for the respondent No. 5.

2. The petitioner's case relates to Package No. ASWR/RNG/2014/11 whereby tenders were invited in connection with the flood management of river Ranganadi along with river training work on both embankments in Lakhimpur district. It may be stated here that Package No. 11 mentioned above is a part of 12 packages for flood management of river Ranganadi. The estimated cost of the Package No. 11 was Rs. 90,04,51,808/-.

3. Mr. D. Das, learned senior counsel for the petitioner submits that the tender process was a two bid system i.e. it consisted of the technical bid and the financial bid. The case in brief relates to Clause 4.4, 4.5 and 31 of the Instruction to Bidders (for short, hereinafter referred to as 'ITB'). Whether Clause 4.5 can be relaxed in case of the petitioner? Whether the respondent No. 5 fulfills Clause 4.4 and whether the clause can be relaxed? Whether the contract should be allotted to the lowest bidder as per Clause 31? Clause 4.5 of the Instructions to Bidders is reproduced below:

"4.5 A To qualify for award of the contract, each bidder in its name should have in the last five years as below:

a) Achieved a minimum annual financial turnover in any one year amount not less than 1.50 (one & half) times the value of their respective packages.

b) Satisfactorily completed (not less than 100% of the contract value) as prime contractor at least one similar work of value not less than amount 25% of estimated value of present contract."

In addition the bidder should in its name have completed the following specific to the packages as detailed below:

----Package ASWR/Rng/2014/01 to ASWR/Rng/2014/09-----

The bidder should have executed in the last 3 years by themselves, the minimum quantities of the following items of work as:

Construction work related to flood control structure such as construction of embankment at least 25% of the bid value

At least one work of earthwork in embankment by Truck carriage.

----Package ASWR/Rng/2014/10 and ASWR/Rng/2014/11----

Construction work involving one single work of river training works of at least 25% of the bid value.

----Package ASWR/Rng/2014/12---

Construction work involving river training works of at least 25% of the bid value."

4. In terms of Clause 4.5 of the ITB, the petitioner had submitted his annual financial turnover for five years. The comparative statement annexed with the writ petition shows that the petitioner's annual financial turnover was between Rs. 60 Crores to Rs. 77 Crores for the five years in between 2008 and 2013. Mr. Das submits that as per Clause 4.5 of the ITB, the minimum annual financial turnover in any one year should not be less than 1 1/2 times the value of the respective packages, which in this case was Rs. 1,35,09,00,000/-. He submits that though the documents submitted by the petitioner showed their annual income turnover between 2008 to 2013 to the tune of Rs. 60 Crores to Rs. 77 Crores, the respondents had overlooked the IT Return and Certificates from the Income Tax Department which would show that they had a turnover of over Rs. 1.35 Crores as was required under Clause 4.5 of the ITB. Mr. Das also submits that the annual turnover as shown in the comparative chart relates only to Shivam JV while the petitioner, Bharatia Shivam JV is a joint venture and that the comparative chart also showed that the joint venture agreement of Bharatia Shivam JV had been enclosed along with their tender documents. Mr. Das also submits that the combined annual turnover of the joint venture i.e. the petitioner is beyond Rs. 1,35,09,00,000/- and, as such, the State respondents have illegally disqualified the petitioner.

5. Mr. D.

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